A man given life for the Kinahan cartel murder of Michael Barr must wait to hear the outcome of an appeal against his conviction.
Eamonn Cumberton, 32, of Mountjoy Street, Dublin 7, had denied the murder of Mr Barr (35) in the Sunset House pub in Dublin’s north inner city on April 25, 2016.
Mr Barr was standing at the counter of the bar, socialising, when two men wearing "Freddy Kruger" masks entered the pub and one of them shot him seven times in what the Special Criminal Court described as a "deliberate" and "planned" execution.
Mr Justice Tony Hunt, presiding, said that although the court could not determine which role Cumberton played in the shooting, he was one of three culprits seen dumping items connected with the killing into the getaway car.
The car was later found partially burnt-out on Walsh Road in Drumcondra and gardaí were able to extinguish the flames. In the car officers found three rubber masks, a baseball cap and four firearms. These items were "intimately connected with the killing", Mr Justice Hunt said, describing the masks as "eye-catching, lurid and distinctive”.
Mr Justice Hunt said the court was satisfied that DNA found on the baseball cap and one of the rubber masks was Cumberton's and that the three people seen outside the Audi were "involved intimately" in the events at Sunset House.
The court also relied on the circumstantial evidence of Cumberton’s “highly unusual” trip to Thailand around the time of the killing, when he had gone to the airport with no luggage, but was prevented from boarding the flight because his passport was due to expire within three months.
Finally, the court relied on inferences drawn from Cumberton’s failure to answer certain questions asked of him by gardaí.
He was jailed for life on January 29, 2018.
Cumberton moved to appeal his conviction today on 28 grounds of appeal.
His barrister, Padraig Dwyer SC, accepted that it was “unusual” for somebody to turn up to the airport for a holiday with no luggage, but there was evidence Cumberton had frequently travelled to Thailand in the past.
Mr Dwyer said the Special Criminal Court used a “circular argument” to conclude that Cumberton was trying to escape contact with the police. But if he was really trying to escape contact with the police, why would Cumberton go to Store Street garda station, less than a mile from the killing, to apply for an emergency passport twice, counsel asked.
He further submitted that the Special Criminal Court erred in characterising as “extraordinary” a theory that it was possible for DNA to transfer through the air from object to object.
Mr Dwyer said the court treated as “speculative” and “remote” any possibility that DNA particles were shifted from the use of a fire extinguisher in the car that was found partially burnt-out by gardaí.
He submitted that some of the Special Criminal Court’s findings of fact went against the evidence.
Mr Dwyer said the garda who examined the baseball cap and one of the rubber masks had not changed gloves between inspecting the items, and the defence were never allowed to examine the exhibits after they had been removed from the lab.
Counsel further submitted that the Special Criminal Court was wrong to draw inferences from Cumberton’s failure to answer certain questions asked of him by gardaí, erred in admitting the DNA evidence and erred in refusing to direct Cumberton’s acquittal at the close of the prosecution case.
Counsel for the Director of Public Prosecutions, Dominic McGinn SC, said the Special Criminal Court was perfectly entitled to draw its own conclusions about Cumberton’s trip to Thailand.
He said the prosecution’s contention was that it looked as though Cumberton was in a hurry to get out of the country. He was wearing the same clothes as when he went to the garda station for the emergency passport, counsel added.
Mr McGinn said Cumberton’s DNA was not found anywhere else in the car and it would have been speculative to suggest that his DNA had transferred from something else in the car to these items.
In hindsight, Mr McGinn accepted that the items on which Cumberton’s DNA was found should not have been removed from the lab for interview purposes. But there was never a request to examine the items and it was conceded by the defence that it was Cumberton’s DNA.
Mr McGinn said the baseball cap was being portrayed now as irrelevant to the shooting because no description was given of any shooter wearing a baseball cap. But it would have been extraordinary to suggest the baseball cap was irrelevant as everything in the car was inextricably linked to the shooting, he said.
Mr Justice John Edwards, who sat with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, said the court would reserve its judgment.